NCUA Bank Suits in Appellate Court Hands

In a sweeping order that delays proceedings on eight pending NCUA lawsuits against Wall Street banks over mortgage backed securities sold to failed corporate credit unions, U.S. District Judge John W. Lungstrum said April 29 that he will wait for the result of a related appeals court ruling, citing concerns about the time and expense of litigation.

“The Tenth Circuit’s opinion (applied to each of these cases) could result in the dismissal of all claims with respect to a number of certificates, including the dismissal of all claims against certain defendants,” the Kansas City, Kan.-based Lungstrum wrote in reference to the U.S. Court of Appeals for the Tenth Circuit. That appellate court is scheduled to hear oral arguments on two other NCUA securities suits in Denver on May 8.

The stay of proceedings applies to NCUA suits against RBS Securities, Wachovia Capital Markets, J.P. Morgan Securities, UBS Securities, Barclays Capital, Credit Suisse, Bear, Stearns & Co. and JPMorgan Chase Bank. All sold securities to the failed U.S. Central FCU, which was located in Lenexa, Kan. The NCUA claims the banks did not fully disclose the risks associated with the securities.

In opposing the stay, the NCUA said the delay could be detrimental to the discovery process. A decision out of Denver could take months.

However, Judge Lungstrum said the time and expense that could be avoided if the Tenth Circuit rules in favor of the appealing banks significantly outweigh the NCUA’s concerns.

The bank defendants have argued that the NCUA failed to file the suits within a three-year statute of limitations that they say began when U.S. Central and other corporates first purchased the mortgage backed securities. However, the NCUA has countered that the statute of limitations should have begun when it placed the corporates into conservatorship.

NCUA Public Affairs Specialist John Fairbanks said regarding the delay, “We are gratified the judge is willing to re-consider his decision, and we will be presenting our arguments to the court.”

The NCUA has come under criticism for entering into contingency agreements with law firms ­handling the cases. Rep. Darrel Issa (R-­Calif.) asked NCUA Inspector General William DeSarno in October 2012 to determine if the NCUA violated Executive Order 13433, which prohibits federal agencies from entering into contingency agreements. DeSarno said the NCUA did not ­violate the executive order, and further said the fees charged by the firms were reasonable.

Despite the criticism, should the cases be dismissed, the NCUA’s contingency agreements might be a blessing, because attorneys typically only collect a percentage of the settlement, rather than billing by the hour.

To date, the NCUA has collected $335 million in settlements from suits over securities sold to failed corporates. However, the agency will not disclose how much of that amount will be applied to offset corporate stabilization costs to credit unions.